EXHIBIT 4.1
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BANKATLANTIC BANCORP, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION,
Trustee
INDENTURE
Dated as of ___________, 1997
_____________________________
$115,000,000
___% Convertible Subordinated Debentures
Due 2007
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BankAtlantic Bancorp, Inc.
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of ___________, 1997
Trust Indenture
Act Section Indenture Section
ss.310(a)(1) ................................. 7.8
(a)(2) ................................. 7.8
(a)(3) ................................. N/A
(a)(4) ................................. N/A
(b) ................................. 7.8, 7.9
(c) ................................. N/A
ss.311(a) ................................. 7.12
(b) ................................. 7.12
(c) ................................. N/A
ss.312(a) ................................. 5.1, 5.2
(b) ................................. 5.2
(c) ................................. 5.2
ss.313(a) ................................. 5.3
(b)(1) ................................. N/A
(b)(2) ................................. N/A
(c) ................................. 5.3
(d) ................................. 5.3
ss.314(a) ................................. 5.4
(b) ................................. N/A
(c) ................................. 2.2
(d) ................................. N/A
(e) ................................. 1.3
(f) ................................. N/A
ss.315(a) ................................. 7.1(a)
(b) ................................. 7.2
(c) ................................. 7.1(b)
(d) ................................. 7.1(c)
(e) ................................. 6.14
ss.316(a)(1)(A) ................................. 6.12
(a)(1)(B) ................................. 6.13
(a)(2) ................................. N/A
(b) ................................. 6.8
ss.317(a)(1) ................................. 6.3
(a)(2) ................................. 6.4
(b) ................................. 4.3
ss.318(a) ................................. 1.7
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NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
RECITALS OF THE COMPANY......................................................................................... 1
ARTICLE I
Definitions and Other Provisions of General Application................................................ 1
SECTION 1.1. DEFINITIONS.............................................................................. 1
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS..................................................... 8
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE................................................... 8
SECTION 1.4. ACTION BY DEBENTUREHOLDERS............................................................... 9
SECTION 1.5. NOTICES, ETC., TO TRUSTEE AND COMPANY.................................................... 11
SECTION 1.6. NOTICES TO DEBENTUREHOLDERS; WAIVER...................................................... 11
SECTION 1.7. CONFLICT WITH TRUST INDENTURE ACT........................................................ 12
SECTION 1.8. EFFECT OF HEADINGS AND TABLE OF CONTENTS................................................. 12
SECTION 1.9. SUCCESSORS AND ASSIGNS................................................................... 12
SECTION 1.10. SEPARABILITY CLAUSE..................................................................... 12
SECTION 1.11. BENEFITS OF INDENTURE................................................................... 12
SECTION 1.12. LEGAL HOLIDAYS.......................................................................... 12
SECTION 1.13. GOVERNING LAW........................................................................... 13
ARTICLE II
Debenture Forms........................................................................................ 13
SECTION 2.1. FORMS GENERALLY.......................................................................... 13
SECTION 2.2. DEBENTURES IN GLOBAL FORM................................................................ 13
SECTION 2.3. FORM OF DEBENTURE........................................................................ 14
ARTICLE III
The Debentures......................................................................................... 24
SECTION 3.1. GENERAL TITLE; GENERAL LIMITATIONS; TERMS
OF DEBENTURE............................................................................. 24
SECTION 3.2. DENOMINATIONS............................................................................ 24
SECTION 3.3. EXECUTION, AUTHENTICATION AND DELIVERY................................................... 25
SECTION 3.4. TEMPORARY DEBENTURES..................................................................... 26
SECTION 3.5. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE................................................................................. 26
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN
DEBENTURES............................................................................... 29
SECTION 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED....... ............................................................ 29
SECTION 3.8. PERSONS DEEMED OWNERS.................................................................... 31
SECTION 3.9. CANCELLATION............................................................................. 31
SECTION 3.10. COMPUTATION OF INTEREST.................................................................. 31
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ARTICLE IV
Covenants.............................................................................................. 32
SECTION 4.1. PAYMENT OF PRINCIPAL AND INTEREST........................................................ 32
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.......................................................... 32
SECTION 4.3. MONEY FOR DEBENTURE PAYMENTS TO BE HELD IN
TRUST.................................................................................... 32
SECTION 4.4. PAYMENT OF TAXES AND OTHER CLAIMS........................................................ 34
SECTION 4.5. MAINTENANCE OF PROPERTIES................................................................ 34
SECTION 4.6. STATEMENT AS TO COMPLIANCE............................................................... 34
SECTION 4.7. CORPORATE EXISTENCE...................................................................... 35
SECTION 4.8. RESTRICTIONS ON DIVIDENDS, REDEMPTIONS AND
OTHER PAYMENTS........................................................................... 35
ARTICLE V
Debentureholders' Lists and Reports by the
Trustee and the Company................................................................................ 36
SECTION 5.1. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF DEBENTUREHOLDERS............................................................ 36
SECTION 5.2. PRESERVATION OF INFORMATION;
COMMUNICATIONS TO DEBENTUREHOLDERS....................................................... 36
SECTION 5.3. REPORTS BY TRUSTEE....................................................................... 36
SECTION 5.4. REPORTS BY COMPANY....................................................................... 37
ARTICLE VI
Remedies............................................................................................... 38
SECTION 6.1. EVENTS OF DEFAULT........................................................................ 38
SECTION 6.2. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT................................................................................ 39
SECTION 6.3. SUITS FOR ENFORCEMENT BY TRUSTEE......................................................... 40
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM......................................................... 40
SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF DEBENTURES................................................................. 41
SECTION 6.6. APPLICATION OF MONEY COLLECTED........................................................... 41
SECTION 6.7. LIMITATION ON SUITS...................................................................... 42
SECTION 6.8. UNCONDITIONAL RIGHT OF DEBENTUREHOLDERS
TO RECEIVE PRINCIPAL AND INTEREST........................................................ 43
SECTION 6.9. RESTORATION OF RIGHTS AND REMEDIES....................................................... 43
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE........................................................... 43
SECTION 6.11. DELAY OR OMISSION NOT A WAIVER........................................................... 43
SECTION 6.12. CONTROL BY DEBENTUREHOLDERS.............................................................. 44
SECTION 6.13. WAIVER OF PAST DEFAULTS.................................................................. 44
SECTION 6.14. UNDERTAKING FOR COSTS.................................................................... 44
SECTION 6.15. WAIVER OF STAY OR EXTENSION LAWS......................................................... 45
ARTICLE VII
The Trustee............................................................................................ 45
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SECTION 7.1. CERTAIN DUTIES AND RESPONSIBILITIES...................................................... 45
SECTION 7.2. NOTICE OF DEFAULTS....................................................................... 46
SECTION 7.3. CERTAIN RIGHTS OF TRUSTEE................................................................ 47
SECTION 7.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF DEBENTURES............................................................................ 48
SECTION 7.5. MAY HOLD DEBENTURES...................................................................... 48
SECTION 7.6. MONEY HELD IN TRUST...................................................................... 48
SECTION 7.7. COMPENSATION AND REIMBURSEMENT........................................................... 49
SECTION 7.8. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
DISQUALIFICATION......................................................................... 49
SECTION 7.9. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR................................................................................ 50
SECTION 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................................................... 51
SECTION 7.11. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS OF TRUSTEE........................................................ 52
SECTION 7.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.................................................................................. 52
ARTICLE VIII
Supplemental Indentures................................................................................ 52
SECTION 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF DEBENTUREHOLDERS...................................................................... 52
SECTION 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
DEBENTUREHOLDERS......................................................................... 53
SECTION 8.3. EXECUTION OF SUPPLEMENTAL INDENTURES..................................................... 54
SECTION 8.4. EFFECT OF SUPPLEMENTAL INDENTURES........................................................ 55
SECTION 8.5. CONFORMITY WITH TRUST INDENTURE ACT...................................................... 55
SECTION 8.6. REFERENCE IN DEBENTURES TO SUPPLEMENTAL
INDENTURES............................................................................... 55
SECTION 8.7. SUBORDINATION UNIMPAIRED................................................................. 55
ARTICLE IX
Consolidation, Merger, Conveyance, Transfer or Lease................................................... 55
SECTION 9.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS............................................................................ 55
SECTION 9.2. SUCCESSOR CORPORATION SUBSTITUTED........................................................ 56
SECTION 9.3. LIMITATION ON LEASE OF PROPERTIES AS
ENTIRETY................................................................................. 56
ARTICLE X
Satisfaction, Discharge and Defeasance................................................................. 56
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE.................................................. 56
SECTION 10.2. APPLICATION OF TRUST MONEY............................................................... 58
SECTION 10.3. SATISFACTION, DISCHARGE AND DEFEASANCE OF
DEBENTURES............................................................................... 58
ARTICLE XI
Subordination of Debentures............................................................................ 60
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SECTION 11.1. SUBORDINATION........................................................................... 60
SECTION 11.2. DISTRIBUTION OF ASSETS, ETC............................................................. 61
SECTION 11.3. SUBROGATION............................................................................. 62
SECTION 11.4. OBLIGATION OF THE COMPANY UNCONDITIONAL................................................. 63
SECTION 11.5. PAYMENTS ON DEBENTURES PERMITTED........................................................ 64
SECTION 11.6. EFFECTUATION OF SUBORDINATION BY TRUSTEE................................................ 64
SECTION 11.7. KNOWLEDGE OF TRUSTEE.................................................................... 64
SECTION 11.8. TRUSTEE MAY HOLD SENIOR INDEBTEDNESS.................................................... 64
SECTION 11.9. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS
NOT IMPAIRED............................................................................ 64
SECTION 11.10. ALTERATION OF SENIOR INDEBTEDNESS....................................................... 65
SECTION 11.11. ARTICLE APPLICABLE TO PAYING AGENTS..................................................... 65
SECTION 11.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF
SENIOR INDEBTEDNESS......................................................................65
ARTICLE XII
Redemption............................................................................................. 65
SECTION 12.1. MANDATORY REDEMPTION.................................................................... 65
SECTION 12.2. OPTIONAL REDEMPTION..................................................................... 66
SECTION 12.3. NOTICES TO TRUSTEE...................................................................... 66
SECTION 12.4. SELECTION OF DEBENTURES TO BE REDEEMED.................................................. 66
SECTION 12.5. NOTICE OF REDEMPTION.................................................................... 66
SECTION 12.6. FFECT OF NOTICE OF REDEMPTION........................................................... 67
SECTION 12.7. DEPOSIT OF REDEMPTION PRICE............................................................. 67
SECTION 12.8. DEBENTURES REDEEMED IN PART............................................................. 68
SECTION 12.9. REPURCHASING OF DEBENTURES.............................................................. 68
ARTICLE XIII
Conversion of Debentures............................................................................... 69
SECTION 13.1. CONVERSION PRIVILEGE.................................................................... 69
SECTION 13.2. MANNER OF EXERCISE OF CONVERSION
PRIVILEGE............................................................................... 69
SECTION 13.3. CASH ADJUSTMENT UPON CONVERSION......................................................... 70
SECTION 13.4. CONVERSION PRICE........................................................................ 70
SECTION 13.5. ADJUSTMENT OF CONVERSION PRICE.......................................................... 70
SECTION 13.6. EFFECT OF RECLASSIFICATIONS,
CONSOLIDATIONS, MERGERS OR SALES ON
CONVERSION PRIVILEGES................................................................... 74
SECTION 13.7. TAXES ON CONVERSIONS.................................................................... 75
SECTION 13.8. COMPANY TO RESERVE STOCK................................................................ 75
SECTION 13.9. DISCLAIMER BY TRUSTEE OF RESPONSIBILITY
FOR CERTAIN MATTERS..................................................................... 75
SECTION 13.10. COMPANY TO GIVE NOTICE OF CERTAIN EVENTS................................................ 76
ARTICLE XIV
Immunity of Directors, Officers, Employees
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and Stockholders....................................................................................... 76
SECTION 14.1. EXEMPTION FROM INDIVIDUAL LIABILITY..................................................... 76
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THIS INDENTURE, dated as of ___________, 1997, by and between
BankAtlantic Bancorp, Inc., a corporation duly organized and existing under the
laws of the State of Florida ("the Company"), and First Trust National
Association (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation, execution and delivery of
its debentures, to be known as ___% Convertible Subordinated Debentures due 2007
(the "Debentures"), the amount and terms of which are as hereinafter provided;
and, to provide the terms and conditions upon which the Debentures are to be
authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture.
All acts and things necessary to make the Debentures, when executed by
the Company and authenticated and delivered by the Trustee as in this Indenture
provided, the valid, binding and legal obligations of the Company, and to
constitute these presents as a valid indenture and agreement according to its
terms, have been done and performed, and the execution of this Indenture and the
issue hereunder of the Debentures have in all respects been duly authorized, and
the Company, in the exercise of the legal right and power vested in it, executes
this Indenture and proposes to make, execute, and deliver the Debentures.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
Each party agrees as follows for the benefit of the other party and for
the equal and proportionate benefit of the Debentureholders (as hereinafter
defined):
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.1. DEFINITIONS.
For all purposes of this Indenture and of any indenture supplemental
hereto, except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as
well as the singular;
(2) the term "this Indenture" means this instrument as
originally executed or as it may from time to time be
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supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions
hereof;
(3) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(4) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in effect on the date of execution of this
Indenture; and
(5) all references in this instrument to designated
"Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this instrument as
originally executed; the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision;
Certain terms used principally in Article Seven are defined in that
Article.
"Act" when used with respect to any Debentureholder has the
meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays.
Whenever successive weekly publications in an Authorized Newspaper are required
hereunder they may be made (unless otherwise expressly provided herein) on the
same or different days of the week and in the same or different Authorized
Newspapers.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
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"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday nor
other day on which banking institutions in the Place of Payment are authorized
by law or required by executive order to close.
"Capitalized Lease Obligation" means any lease obligation of a Person
incurred with respect to any property (whether real, personal or mixed) acquired
or leased by such Person and used in its business that is required to be
recorded as a capitalized lease in accordance with generally accepted accounting
principles.
"Capital Stock" means any and all shares, interests, participation
rights or other equivalents (however designated) of corporate stock.
"Class A Common Stock" means the class of stock which, at the date of
this Indenture, is designated as Class A Common Stock, par value $.01 per share,
of the Company and the class or classes of stock, if any, into which such Class
A Common Stock may thereafter be changed or reclassified.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board of Directors, President or a Vice
President, and delivered to the Trustee.
"Conversion Price" means the price per share of Class A Common Stock
from time to time in effect at which Debentures may be converted into Class A
Common Stock pursuant to Article Thirteen hereof.
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"Debentures" means the debentures authenticated and delivered
under this Indenture.
"Debentureholder" or "Holder" means a Person in whose name a Debenture
is registered in the Debenture Register.
"Debenture Register" and "Debenture Registrar" have the
respective meanings specified in Section 3.5.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means The Depositary Trust Company or any other clearing
agency registered under the Securities Exchange Act of 1934, as amended,
subsequently designated as Depositary by the Company.
"Event of Default" has the meaning specified in Section 6.1.
"Indebtedness" means (i) all Obligations of the Company for borrowed
money (whether or not the recourse of the lender is to the whole of the assets
of the Company or only to a portion thereof), (ii) all indebtedness of the
Company which is evidenced by a note, debenture, bond or other similar
instrument, including Capitalized Lease Obligations, (iii) all indebtedness of
the Company representing the unpaid balance of the purchase price of any goods
or other property or balance owed for any services rendered, (iv) all
indebtedness of the Company, including Capitalized Lease Obligations incurred,
assumed or given in an acquisition (whether by way of purchase, merger or
otherwise) of any business, real property or other assets, (v) any indebtedness
of others described in the preceding clauses (i), (ii), (iii) and (iv) that the
Company has guaranteed or for which it is otherwise liable and (vi) any
amendment, renewal, extension, deferral, modification, restructuring or
refunding of any such indebtedness, obligation or guarantee.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Debentures.
"Maturity" when used with respect to any Debenture means the date on
which the principal of and interest on such Debenture becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration or otherwise.
"Obligations" means, with respect to any Indebtedness, any
principal, premium, interest, penalties, fees and other liabilities
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payable from time to time and obligations performable under the documentation
governing such Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary
or an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may,
except as otherwise expressly provided in this Indenture, be counsel for the
Company.
"Outstanding" when used with respect to Debentures means, as of the
date of determination, all Debentures theretofore authenticated and delivered
under this Indenture, except:
(i) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debentures for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Debentures;
(iii) Debentures in exchange for or in lieu of which other
Debentures have been authenticated and delivered pursuant to this
Indenture; and
(iv) Debentures which have been surrendered for
conversion pursuant to Article Thirteen hereof;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debentures Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which the Trustee knows to be so owned shall
be so disregarded. Debentures so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debentures and that
the pledgee is not the Company or any other obligor upon the Debentures or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or interest on any Debentures on behalf of the
5--
Company. The Company or any of its subsidiaries may act as Paying
Agent.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means a city or political subdivision thereof
designated as such by the Company in accordance with the terms of this
Indenture.
"Predecessor Debentures" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 3.6 in lieu
of a mutilated, lost, destroyed or stolen Debenture shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Debenture.
"Principal Corporate Trust Office" means the principal corporate trust
office of the Trustee at the location set forth in Section 1.5 or at such other
location as the Trustee may from time to time designate by written notice to the
Company.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the close of business on the 15th day of the calendar month
immediately preceding the calendar month in which such Interest Payment Date
occurs unless such 15th day is not a Business Day, in which event it shall be
the first Business Day immediately following such 15th day.
"Responsible Officer" when used with respect to the Trustee means the
chairman or the vice chairman of the board of directors, the chairman or vice
chairman of the executive committee of the board of directors, the president,
any vice-president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Responsible Officer of the Company" shall mean the Chairman or Vice
Chairman of the Board of Directors, the President, any Vice-President, the
Treasurer, the Controller or the Secretary of the Company.
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"Senior Indebtedness" means any and all Indebtedness of the Company,
except the Company's currently outstanding 9% Subordinated Debentures due 2005
(and 6 3/4% Convertible Subordinated Debentures due 2006 (each of which rank
pari passu in right of payment to the Debentures), except the Company's
currently outstanding 9 1/2% Junior Subordinated Debentures due 2027 (which rank
junior in right of payment to the Debentures) and except any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall be
subordinate or shall rank pari passu in right of payment to the Debentures.
"Special Payment Date" has the meaning specified in
Section 3.7.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Debenture means the
date specified in such Debenture as the fixed date on which the principal of and
the interest on such Debenture is due and payable.
"Subsidiary" means, with respect to the Company, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, officers or trustees
thereof is at the time owned in the aggregate, directly or indirectly, by the
Company and its Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 (15 U.S.C. ss.ss.77aaa-77bbbb), as in force at the date as of
which this instrument was executed, except as provided in Section
8.5.
"Vice President" when used with respect to the Company or the Trustee
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"U.S. Government Obligations" means direct obligations of the
United States of America for the payment of which the full faith
and credit of the United States of America is pledged.
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SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such counsel's certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that such certificate or opinion or representations are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. ACTION BY DEBENTUREHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Debentureholders may be embodied in and evidenced by (i) one or more instruments
of substantially similar tenor signed by such Debentureholders in person or by
agent or proxy duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Debentureholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Sections 7.1 and
7.3) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a
partnership or an employee of a public or governmental agency on behalf of such
corporation, association, partnership or agency, or by an agent or fiduciary,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the
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authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The ownership of Debentures shall be proved by the
Debenture Register or by a certificate of the Debenture Registrar thereof.
(d) At any time prior to the taking of any action by the Holders of the
percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action, any Holder which has consented to such
action may, by filing written notice with the Trustee at its Principal Corporate
Trust Office and upon proof of holding as provided in this Section 1.4, revoke
such action so far as concerns such Debenture. Except as aforesaid, any request,
demand, authorization, direction, notice, consent, waiver or other action by the
Holder of any Debenture shall be conclusive and binding upon such Holder and
upon all future Holders of such Debenture and of every Debenture issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debenture. Any action taken by the Holders of the percentage in aggregate
principal amount of the Debentures specified in the Indenture in connection with
such action shall be conclusive and binding upon the Company, the Trustee and
the Holders of all of the Debentures.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by or pursuant to a Board Resolution, fix in advance a
record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other action, but
the Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after such record date, but only Holders of record
at the close of business on such record date shall be deemed to be the Holders
for the purposes of determining whether Holders of the requisite proportion of
Outstanding Debentures have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other action, and
for that purpose the Outstanding Debentures shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
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SECTION 1.5. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Debentureholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Debentureholder or by the Company shall
be sufficient for every purpose hereunder if and only if made, given,
furnished or filed in writing to or with the Corporate Trust Department
of the Trustee at the Principal Corporate Trust Office which at the
date of this Indenture is 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx
00000, or
(2) the Company by the Trustee or by any Debentureholder shall
be sufficient for every purpose hereunder if in writing and mailed,
first-class, postage prepaid, to the Company addressed to it at 0000
Xxxx Xxxxxxx Xxxxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, to the attention
of the Corporate Secretary, or at any other address furnished in
writing to the Trustee by the Company.
SECTION 1.6. NOTICES TO DEBENTUREHOLDERS; WAIVER.
Where this Indenture provides for notice to Debentureholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first class, postage prepaid, to
each Debentureholder affected by such event, at his address as it appears on the
Debenture Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Debentureholders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular
Debentureholder shall affect the sufficiency of such notice with respect to
other Debentureholders. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be equivalent of
such notice. Waivers of notice by Debentureholders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impractical to mail notice of any event to
Debentureholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
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In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible to make
publication of any notice in an Authorized Newspaper or Authorized Newspapers as
required by this Indenture, then such method of publication or notification as
shall be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
SECTION 1.7. CONFLICT WITH TRUST INDENTURE ACT.
This Indenture is subject to the TIA and if any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in this Indenture by any of the provisions of TIA, such required
provision shall control.
SECTION 1.8. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debentures, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Debentureholders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. LEGAL HOLIDAYS.
In any case where the date of an Interest Payment Date or the Stated
Maturity of any Debenture shall not be a Business Day, then (notwithstanding any
other provision of the Debentures or this Indenture) payment of the principal
of, or interest on, any Debentures need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
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made on the nominal date of any such Interest Payment Date or
Stated Maturity.
SECTION 1.13. GOVERNING LAW.
This Indenture and the Debentures issued hereunder shall be controlled,
construed and enforced in accordance with the laws of the State of Florida
applicable to contracts made and to be performed entirely in that State.
ARTICLE II
Debenture Forms
SECTION 2.1. FORMS GENERALLY.
The Debentures and the certificates of authentication thereon shall be
in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon, as may be
required to comply with the rules of any securities exchange, or as may,
consistent herewith, be determined by the officers executing such Debentures, as
evidenced by their execution of the Debentures. Any portion of the text of any
Debenture may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Debenture.
The definitive Debentures shall be printed, lithographed or engraved on
steel engaged borders or may be produced in any other manner, all as determined
by the officers executing such Debentures as evidenced by their execution of
such Debentures.
SECTION 2.2. DEBENTURES IN GLOBAL FORM.
The Debentures may be issued in whole or in part in global form in the
form of one or more fully registered global Debentures (each being called a
"Global Debenture") and any such Debenture in global form may provide that it
shall represent the aggregate or specified amount of Outstanding Debentures from
time to time endorsed thereon and may also provide that the aggregate amount of
Outstanding Debentures represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Global Debenture to reflect the amount,
or any increase or decrease in the amount or changes in the rights of Holders of
Outstanding Debentures represented thereby, shall be made in such manner and by
such Person or Persons as shall be specified therein. Any instructions by the
Company with respect to a Debenture in global
13--
form shall be in writing but, to the extent not relevant, need not comply with
Section 314(c) of the Trust Indenture Act.
SECTION 2.3. FORM OF DEBENTURE.
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[FORM OF FACE OF DEBENTURE]
___% Convertible Subordinated Debentures
Due 2007
No. $__________
BANKATLANTIC BANCORP, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars on ___________, 1997.
Interest Payment Dates: ___________ 1 and ___________ 1
Record Dates: ___________ 15 and ___________ 15 (whether or
not a Business Day)
Dated: _____________, 1997
BANKATLANTIC BANCORP, INC.,
a Florida corporation
By:
By:
(SEAL)
This is one of the Debentures
referred to in the within-
mentioned Indenture:
First Trust National Association, as Trustee
By:______________________________
Authorized Signature
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BANKATLANTIC BANCORP, INC.
___% Convertible Subordinated Debentures
Due 2007
1. INTEREST. BankAtlantic Bancorp, Inc., a corporation duly organized
and existing under the laws of the State of Florida (the "Company"), promises to
pay simple interest on the principal amount of this Debenture at the rate per
annum shown above from the date of issuance until maturity. The Company will pay
interest semi-annually on each ___________ 1 and ___________ 1 of each year, or
if any such day is not a Business Day (as defined in the Indenture), on the next
succeeding Business Day (each an "Interest Payment Date").
Interest on the Debentures will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; PROVIDED, that if there is no existing Default in the payment of
interest, and if this Debenture is authenticated between a record date referred
to on the face hereof and the next succeeding interest payment date, interest
shall accrue from such next succeeding interest payment date; PROVIDED FURTHER,
that the first interest payment date shall be ___________ 1, 199___. The Company
shall pay interest on overdue principal at the then applicable interest rate on
the Debentures; it shall pay interest on overdue installments of interest
(without regard to any applicable grace periods) at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Debentures
(except defaulted interest) to the Persons who are registered Holders of
Debentures at the close of business on the record date next preceding the
interest payment date, even if such Debentures are canceled after such record
date and on or before such interest payment date. The Holder must surrender this
Debenture to a Paying Agent to collect principal payments. The Company will pay
principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts. The Company, however,
may pay principal and interest by check payable in such money. It may mail an
interest check to a Holder's registered address.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee will
act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-registrar without notice to any
Debentureholder. The Company may act in any such capacity.
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4. INDENTURE. This Debenture is one of a duly authorized issue of
Debentures of the Company issued under and pursuant to an Indenture dated as of
___________, 1997 and all indentures supplemental thereto (herein referred to as
the "Indenture") between the Company and the Trustee. The terms of the
Debentures include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date the Indenture is qualified. The
Debentures are subject to all such terms, and Debentureholders are referred to
the Indenture and such Act for a statement of such terms. The Debentures are
limited to $115,000,000 in aggregate principal amount. Capitalized terms used in
this Debenture and not defined in this Debenture shall have the meanings set
forth in the Indenture.
5. OPTIONAL REDEMPTION. The Company may redeem all or any of the
Debentures at any time or from time to time after ___________ 1, 2000, at the
redemption prices (expressed in percentages of principal amount) set forth below
plus accrued interest, if any, to the redemption date, if redeemed during the
12-month period beginning ___________ 1, of the years indicated below.
YEAR PERCENTAGE
---- ----------
2000 104%
2001 103
2002 102
2003 101
2004 and thereafter 100
If the redemption date is subsequent to a record date with respect to
any interest payment date, and on or prior to such interest payment date the
Holder of such Debenture transfers the Debenture, then such accrued interest, if
any, shall be paid to the person who surrenders the Debenture for redemption
(and not the Holder as of the record date with respect to such interest payment
date), and no other interest shall be payable thereon.
6. MANDATORY REDEMPTION. The Company shall have no mandatory
redemption or sinking fund obligations with respect to the Debentures.
7. NOTICE OF REDEMPTION. Notice of redemption shall be
mailed at least thirty (30) days but not more than sixty (60) days
before the redemption date, to each Holder of Debentures to be
redeemed at its registered address. Debentures may be redeemed in
part but only in whole multiples of $1,000, unless all of the
Debentures held by a Holder are to be redeemed. On and after the
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redemption date, interest ceases to accrue on Debentures or portions of them
called for redemption.
8. CONVERSION OF DEBENTURE. Subject to the provisions of the Indenture,
the Holder of this Debenture is entitled, at his option, at any time prior to
maturity, to convert the principal amount of this Debenture (or any portion
hereof in whole multiples of $1,000) into shares of Class A Common Stock of the
Company, as said shares shall be constituted at the date of conversion, at the
conversion price of $___ principal amount of Debentures for each share of such
Class A Common Stock (except that, in case this Debenture or any portion thereof
shall be called for redemption, such conversion right shall terminate with
respect to this Debenture or portion thereof, as the case may be, so called for
redemption at the close of business on the third (3rd) business day next
preceding the date fixed for redemption as provided in the Indenture), or at the
adjusted conversion price in effect at the date of conversion determined as
provided in the Indenture, upon surrender of this Debenture to the Registrar
accompanied by written notice of election to convert, and (if new Debentures for
the unconverted portion of any Debenture shall be registered in a name other
than that of the Holder) by instruments of transfer, in form satisfactory to the
Registrar, duly executed by the registered Holder or by his duly authorized
attorney. Such surrender shall, if made during the period from the close of
business on the record date preceding an interest payment date to the opening of
business on such interest payment date (unless this Debenture or the portion
being converted shall have been called for redemption), also be accompanied by
payment in funds acceptable to the Company of an amount equal to the interest
payable on such interest payment date on the principal amount of this Debenture
then being converted. Subject to the foregoing, no adjustment is to be made on
conversion for interest accrued hereon (unless this Debenture or the portion
thereof being converted shall have been called for redemption) or for dividends
on Class A Common Stock issued on conversion. The Company is not required to
issue fractional shares upon any such conversion, but shall make adjustment
therefor in cash on the basis of the current market value of such fractional
interest as provided in the Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Debentures are in registered
form without coupons and only in denominations of $1,000 and integral multiples
thereof. As provided in the Indenture, and subject to certain limitations
therein set forth, Debentures may be surrendered for exchange or transfer for a
like aggregate principal amount of Debentures of the same or different
authorized denominations, as requested by the Holder surrendering the same. The
Registrar and the Trustee may require the Holder to furnish appropriate
endorsements and transfer documents and to pay a sum sufficient to cover any tax
or other governmental charges that may
18--
be imposed in connection with the requested exchange or transfer. The Registrar
need not exchange or register the transfer of any Debentures or portion of a
Debenture selected for redemption. Also, it need not exchange or register the
transfer of any Debentures for a period of fifteen (15) days before a selection
of Debentures to be redeemed or during the period between a record date and the
next succeeding interest payment date.
10. PERSONS DEEMED OWNERS. Prior to due presentment to the Trustee for
registration of the transfer of this Debenture, the Company, the Trustee and
their respective agents may deem and treat the person in whose name this
Debenture is registered as the absolute owner hereof, whether or not this
Debenture shall be overdue and notwithstanding any notation of ownership or
other writing hereon, for the purpose of receiving payment of or on account of
the principal hereof and interest hereon, and for all other purposes, and
neither the Company, the Trustee, nor their agents shall be affected by any
notice to the contrary. The registered Holder of a Debenture shall be treated as
its owner for all purposes.
11. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Debentures may be amended with the consent of the Holders of at
least 66 2/3% in principal amount of the then outstanding Debentures, and any
existing default (except a payment default) may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding
Debentures. Without the consent of any Debentureholder, the Indenture or the
Debentures may be amended to cure any ambiguity, defect or inconsistency, to
provide for assumption of Company obligations to Debentureholders, to provide
for uncertificated Debentures in addition to certificated Debentures, or to make
any change that does not adversely affect the rights of any Debentureholder.
12. DEFAULTS AND REMEDIES. Events of Default include: default in
payment of interest on the Debentures for thirty (30) days; default in payment
of principal on the Debentures at maturity, upon acceleration, redemption or
otherwise; failure by the Company for the period specified in the Indenture
after notice to it to perform certain covenants and to comply with any of its
other agreements in the Indenture or the Debentures; certain final judgments
which remain undischarged; and certain events of bankruptcy or insolvency. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 30% in principal amount of the then outstanding Debentures may declare all
the Debentures to be due and payable immediately, except that in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all
outstanding Debentures shall become due and payable immediately without further
action or notice. Debentureholders may not enforce the Indenture or the
Debentures
19--
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Debentures. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Debentures may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Debentureholders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their interests. The Company must furnish an
annual compliance certificate to the Trustee.
13. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee under the Indenture,
in its individual or any other capacity may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not Trustee.
14. SUBORDINATION. The indebtedness evidenced by the Debentures is, to
the extent provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) of the Company whether outstanding on the date of the Indenture
or thereafter created, incurred, assumed or guaranteed, and is not secured by
any collateral, neither the assets of the Company nor any of its Affiliates or
Subsidiaries. Each Holder, by acceptance hereof, agrees to and shall be bound by
all provisions of the Indenture. Further, each Holder authorizes and directs the
Trustee to take such action on its behalf as may be necessary or appropriate to
acknowledge or effectuate, as between such Holder and the holders of Senior
Indebtedness, the subordination of this Debenture as provided in the Indenture,
and appoints the trustee its attorney-in-fact for any and all such purposes.
15. NO RECOURSE AGAINST OTHERS. No recourse shall be had for the
payment of the principal of or the interest on this Debenture, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture against any stockholder, officer, director, or employee, as such,
past, present or future, of the Company, its Subsidiaries, or any predecessor or
successor corporations, or entities, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
16. AUTHENTICATION. This Debenture shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
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17. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Debentureholder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants
in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any Debentureholder upon written request
and without charge a copy of the Indenture. Request may be made to:
BankAtlantic Bancorp, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Secretary
21--
ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we)
assign and transfer this Debenture to
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
______________________________________________________________________ agent to
transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
Date:_________________________
Your Signature:
(Sign exactly as your name appears on the
face of this Debenture)
Signature Guarantee:___________________________________________________________
22--
[FORM OF CONVERSION NOTICE]
BANKATLANTIC BANCORP, INC.
The undersigned owner of this Debenture hereby irrevocably exercises
the option to convert this Debenture, or the portion hereof (which is $1,000 or
a whole multiple thereof) below designated, into shares of Class A Common Stock
of BankAtlantic Bancorp, Inc. in accordance with the terms of the Indenture
referred to in this Debenture, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Debentures representing any unconverted principal
amount hereof, be issuable and delivered to the registered holder hereof unless
a different name has been indicated below. If shares are to be issued in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto. Any amount required to be paid by
the undersigned on account of interest accompanies this Debenture.
$_______________________________
Principal Amount to be Converted
(in a whole multiple of $1,000
if less than all)
Fill in for registration of shares of Class A Common Stock and Debentures if to
be issued otherwise than to the registered holder.
_______________________________ _______________________________________
Name Other person's Social Security
or other taxpayer identifying
number
_______________________________
Address
Please print your name and address including zip code:
_______________________________________________________________________________
_______________________________________________________________________________
________________________________ Date:__________________________________
Signature
Signature Guaranteed:__________________________________________________________
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ARTICLE III
The Debentures
SECTION 3.1. GENERAL TITLE; GENERAL LIMITATIONS; TERMS OF
DEBENTURE.
The Debentures shall be known and designated as the "___% Convertible
Subordinated Debentures due 2007 of the Company". Their Stated Maturity shall be
___________ 1, 2007, and they shall bear simple interest at the rate of ___% per
annum commencing upon the date of issuance until Maturity. Interest on each
Debenture shall be payable on the dates specified in the form of Debenture set
forth in Section 2.3. The aggregate principal amount of Debentures which may be
authenticated and delivered under this Indenture is limited to $115,000,000,
except for Debentures authenticated and delivered upon registration for transfer
of or in exchange for or in lieu of other Debentures, as provided herein.
The Person in whose name any Debenture is registered on the Regular
Record Date with respect to an Interest Payment Date will be entitled to receive
the interest payable on such Interest Payment Date, notwithstanding the
cancellation of such Debenture upon any registration of transfer or exchange or
conversion thereof subsequent to such Regular Record Date and prior to such
Interest Payment Date.
The principal of and interest on the Debentures shall be payable in
such coin or currency of the United States of America as at the time of payment
is legal tender for public and private debts. Unless other arrangements are made
with the Debentureholders of record, interest payments shall be made by check
mailed to the Persons entitled thereto at their addresses last appearing on the
Debenture Register. Holders of Debentures must surrender Debentures at the
office or agency of the Company in the Place of Payment to collect the principal
payment on the Debentures.
The Debentures shall be subordinated in right of payment to Senior
Indebtedness of the Company as provided in Article Eleven, shall be pari passu
in right of payment to the Company's 9% Subordinated Debentures due 2005 and the
Company's 6 3/4% Convertible Subordinated Debentures due 2006 and shall be
senior in right of payment to the Company's 9 1/2% Junior Subordinated
Debentures due 2027.
SECTION 3.2. DENOMINATIONS.
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The Debentures shall be issuable only in fully registered form and
without coupons in denominations of $1,000 and any integral multiples thereof.
SECTION 3.3. EXECUTION, AUTHENTICATION AND DELIVERY.
The Debentures shall be executed on behalf of the Company by its
Chairman of the Board of Directors, its President or one of its Vice Presidents
under its corporate seal, which may be in facsimile form and may be imprinted or
otherwise reproduced thereon and attested by its Secretary or its Assistant
Secretary. The signature of any of these officers on the Debentures may be
manual or facsimile.
Debentures bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debentures or did not
hold such offices at the date of such Debentures.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures executed by the Company to
the Trustee for authentication, together with a Company Order of the
authentication and delivery of such Debentures; and the Trustee shall
authenticate and deliver such Debentures as in this Indenture provided and not
otherwise. All Debentures shall be dated the date of their authentication.
Notwithstanding the foregoing, if the Debentures are to be issued in
whole or in part in global form, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such Debentures, authenticate and make available for delivery one or more Global
Debentures that (i) shall represent and shall be denominated in an amount equal
to the aggregate principal amount of the Outstanding Debentures, (ii) shall be
registered in the name of the Depositary for such Debentures or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Debentures in certificated form, this Debenture may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary. Unless this certificate is presented by
an authorized representative of The Depository Trust Company (55 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx) ("XXX"), to the issuer or its agent for registration of
transfer, exchange or
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payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as may be requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or such other entity as may be requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein" or to such other effect as the
Depositary and the Trustee may agree.
Each Depositary for a Global Debenture must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation. The Trustee shall have no responsibility to determine if
the Depositary is so registered.
No Debenture shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee; and such certificate upon any Debenture shall be
conclusive evidence, and the only evidence, that such Debenture has been duly
authenticated and delivered hereunder.
SECTION 3.4. TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Debentures which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Debentures in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debentures may determine, as evidenced by their
execution of such Debentures.
Except in the case of temporary Debentures in global form, which shall
be exchanged in accordance with the provisions hereof, if temporary Debentures
are issued, the Company will cause definitive Debentures to be prepared without
unreasonable delay. After the preparation of definitive Debentures, the
temporary Debentures shall be exchangeable for definitive Debentures upon
surrender of the temporary Debentures at the office or agency of the Company in
the Place of Payment, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debentures, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debentures of authorized denominations. Until so
exchanged, the temporary Debentures shall in all respects be
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entitled to the same benefits under this Indenture as definitive
Debentures.
SECTION 3.5. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Principal Corporate Trust
Office a register (herein referred to as the "Debenture Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Debentures and the registration of transfers of
Debentures. Any such register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby appointed "Debenture Registrar" for the purpose of registering
Debentures and transfers of Debentures as herein provided.
Upon surrender of a Debenture for registration of transfer accompanied
by a written instrument of transfer in form satisfactory to the Company or the
Debenture Registrar at the office or agency of the Company in the Place of
Payment, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Debentures of any authorized denominations, of a like aggregate principal
amount.
At the option of the Holder, Debentures (except a Global Debenture
representing all or a portion of the Debentures) may be exchanged for other
Debentures of any authorized denominations, of a like aggregate principal amount
upon surrender of the Debentures to be exchanged at such office or agency.
Whenever any Debentures are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Debentures which
the Debentureholder making the exchange is entitled to receive.
All Debentures issued upon any registration of transfer or exchange of
Debentures shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such registration of transfer or exchange.
Every Debenture presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer duly executed,
by the Holder thereof or his attorney duly authorized in writing in form
satisfactory to the Company or the Debenture Registrar.
The Company shall not be required (i) to issue, to register the
transfer of or to exchange Debentures during a period beginning at the opening
of business on a Business Day fifteen (15) days
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before the day of any selection of Debentures for redemption under Section 12.4
hereof and ending at the close of business on the day of selection or (ii) to
register the transfer of or exchange of any Debentures so selected for
redemption in whole or in part, except the unredeemed portion of any Debentures
being redeemed in part.
No service charge shall be made for any registration of transfer or
exchange of Debentures, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Debentures, other than
exchanges pursuant to Sections 3.4 or 8.6 not involving any transfer.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Debentures in certificated form, a
Global Debenture may not be transferred except as a whole by the Depositary to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
If at any time the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary or if at any time the Depositary ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, the Company shall appoint such a successor Depositary. If a successor
Depositary is not appointed by the Company within ninety (90) days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of certificated Debentures, shall authenticate and
make available for delivery Debentures in certificated form in an aggregate
principal amount equal to the principal amount of the Global Debenture or
Debentures in exchange for such Global Debenture or Debentures.
The Company may at any time and in its sole discretion determine that
the Debentures issued in the form of one or more Debentures shall no longer be
represented by such Global Debentures. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Debentures, shall authenticate and make available for
delivery, Debentures in certificated form and in an aggregate principal amount
equal to the principal amount of the Debenture or Debentures in global form in
exchange for such Debenture or Debentures in global form.
In any exchange provided for in any of the preceding two paragraphs,
the Company shall execute and the Trustee shall authenticate and make available
for delivery Debentures in certificated form in authorized denominations.
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Upon the exchange of a Global Debenture for Debentures in certificated
form, such Global Debentures shall be canceled by the Trustee. Debentures issued
in exchange for a Global Debenture pursuant to this Section shall be registered
in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall make available for delivery such
Debentures to the Persons in whose names such Debentures are so registered.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Debentures held
on their behalf by the Depositary, or the Debenture Registrar or the Trustee as
its custodian, or under the Global Debenture, and the Depositary may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Debenture for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Debenture.
The Holder of any Global Debenture may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Debentures.
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES.
If (i) any mutilated Debenture is surrendered to the Trustee, or if the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debenture, and (ii) there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Debenture has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Debenture, a new Debenture of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay or authorize the payment of such
Debenture (without surrender
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thereof except in the case of a mutilated Debenture) if the applicant for such
payment shall furnish to the Company such security or indemnity as it may
require to save it harmless and, in the case of destruction, loss or theft,
evidence to the satisfaction of the Company of the destruction, loss or theft of
such Debenture and of the ownership thereof.
Upon the issuance of any new Debenture under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Debenture shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Debenture shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Debenture which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date for such interest payment.
Any interest on any Debenture which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
Holder on the relevant Regular Record Date by virtue of having been such Holder;
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures (or their
respective Predecessor Debentures) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Debenture and the date of the
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proposed payment (the "Special Payment Date"), and at the same time the
Company shall deposit with the Trustee or the Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 4.3), an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest, or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the Special Payment Date, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than fifteen (15) nor less than ten (10) days prior
to the Special Payment Date and not less than ten (10) days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Debentureholder at his address as it
appears in the Debenture Register, not less than ten (10) days prior to
such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in the Place of
Payment, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been given as aforesaid, such Defaulted Interest shall be paid
on the Special Payment Date to the Persons in whose names the
Debentures (or their respective Predecessor Debentures) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
SECTION 3.8. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Debenture is registered as the absolute
owner of such Debenture for the purpose of receiving payment of principal of,
and, subject to Section 3.7,
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and interest on, such Debenture and for all other purposes whatsoever, whether
or not such Debenture be overdue and notwithstanding any notation of ownership
or other writing thereon, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.9. CANCELLATION.
All Debentures surrendered for payment, registration of transfer or
exchange or conversion shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee and, if not already canceled, shall be
promptly canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Debentures previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Debentures
so delivered shall be promptly canceled by the Trustee. No Debentures shall be
authenticated in lieu of or in exchange for any Debentures canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Debentures held by the Trustee shall be destroyed and the Trustee shall deliver
a certificate of destruction to the Company.
SECTION 3.10. COMPUTATION OF INTEREST.
Interest on the Debentures shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE IV
Covenants
SECTION 4.1. PAYMENT OF PRINCIPAL AND INTEREST.
The Company will duly and punctually pay the principal of and interest
on the Debentures in accordance with the terms of the Debentures and this
Indenture.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain an office or agency in the Place of Payment
where Debentures may be presented or surrendered for payment, where Debentures
may be surrendered for registration of transfer or for exchange or conversion
and where notices and demands to or upon the Company in respect of the
Debentures and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and of any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations,
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surrenders, notices and demands may be made or served at the Principal Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
SECTION 4.3. MONEY FOR DEBENTURE PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or interest or premium, if any,
on any of the Debentures, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or interest or
premium, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure to so act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or interest on any of the Debentures,
deposit with a Paying Agent a sum sufficient to pay the principal or interest or
premium, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such sums, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of principal of
or interest or premium, if any, on the Debentures in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Debentures) in the
making of any payment of principal or interest or premium, if
any; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying
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Agent, such sums to be held by the Trustee upon the same terms as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest or
premium, if any, on any Debenture and remaining unclaimed for two (2) years
after such principal or interest or premium, if any, has become due and payable,
shall be paid to the Company upon Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Debenture
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
the Place of Payment, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than thirty (30) days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
The Trustee and the Paying Agent shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
SECTION 4.4. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon it or upon its income, profits or
property; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment or charge
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 4.5. MAINTENANCE OF PROPERTIES.
The Company will, in all material respects, cause all its properties
and the properties of its Subsidiaries used or useful in the conduct of the
business of the Company and its Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be
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necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company or a Subsidiary from
discontinuing the operation and maintenance of any of its properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business and is not disadvantageous in any material respect to the
Debentureholders.
SECTION 4.6. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, a written statement signed by the Chairman
of the Board of Directors, the President or a Vice President and by the Chief
Financial Officer, the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller of the Company, stating, as to each signatory thereof,
that:
(1) a review of the activities of the Company during
such year and of performance under this Indenture has been
made under his supervision, and
(2) to the best of his or her knowledge, based on such review,
the Company has performed and fulfilled all of its obligations under
this Indenture throughout such year, or, if an Event of Default shall
have occurred, specifying each such Event of Default known to him and
the nature and status thereof.
The Company will, so long as any of the Debentures are Outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Event of Default,
an Officer's Certificate specifying such Event of Default.
SECTION 4.7. CORPORATE EXISTENCE.
Subject to Article Nine, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any right or franchise of the Company or its Subsidiaries if the Board
of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or its Subsidiaries and
that the loss thereof is not disadvantageous in any material respect to the
Debentureholders.
SECTION 4.8. RESTRICTIONS ON DIVIDENDS, REDEMPTIONS AND OTHER
PAYMENTS.
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The Company shall not declare or pay any dividends on, or purchase,
redeem or otherwise acquire for value, any of its Capital Stock now or hereafter
outstanding (other than redemption or repurchase of the Debentures in accordance
with the terms of this Indenture) or return any capital to holders of its
Capital Stock as such, or make any distribution of assets to holders of its
Capital Stock as such, unless, on the date of any such dividend declaration or
the date of any such purchase, redemption, payment or distribution specified
above, the Company is not in default in the payment of interest on the
Debentures and no Event of Default has occurred and is continuing.
ARTICLE V
Debentureholders' Lists and Reports by the
Trustee and the Company
SECTION 5.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
DEBENTUREHOLDERS.
The Company will furnish or cause to be furnished to the Trustee (i)
not more than ten (10) days after each Regular Record Date, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders
of Debentures as of such Regular Record Date; provided, however, that the
Company shall not be required to furnish the Trustee the names and addresses of
the Holders of Debentures if the Trustee receives such names and addresses of
the Holders of Debentures in its capacity as Debenture Registrar.
SECTION 5.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
DEBENTUREHOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Debentures contained in the
most recent list furnished to the Trustee as provided in Section 5.1 and the
names and addresses of Holders of Debentures received by the Trustee at any time
that it is acting as Debenture Registrar (if so acting). The Trustee may destroy
any list furnished to it as provided in Section 5.1 upon receipt of a new list
so furnished.
(b) The Trustee shall comply with Section 312(b) of the TIA. The
Trustee, the Company, and any other Person shall have the protection of Section
312(c) of the TIA.
SECTION 5.3. REPORTS BY TRUSTEE.
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(a) So long as the Debentures are Outstanding, within sixty (60) days
after May 15 of each year (the "Reporting Date"), the Trustee shall, if required
by Section 313(a) of the TIA, transmit by mail to the Company and all
Debentureholders, as their names and addresses appear in the Debenture Register,
a brief report dated as of such Reporting Date that complies with Section 313(a)
of the TIA.
(b) A copy of each such report shall, at the time of such transmission
to the Company and the Debentureholders, be filed by the Trustee with each
securities exchange upon which the Debentures are listed, and also with the
Commission. The Company will notify the Trustee when the Debentures are listed
on any securities exchange.
SECTION 5.4. REPORTS BY COMPANY.
The Company will:
(1) file with the Trustee, within fifteen (15) days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it will file with
the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations;
(3) transmit by mail to all Debentureholders as their names
and addresses appear in the Debenture Register, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
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(4) furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants set forth in Article Four
of this Indenture. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under the Indenture.
ARTICLE VI
Remedies
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default", wherever used herein means any one of the following
events, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated, (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any
Debenture when it becomes due and payable, and continuance of
such default for a period of thirty (30) days; or
(2) default in the payment of the principal of any
Debenture at its Maturity; or
(3) default in the performance, or breach, of any material
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance or the breach of
which is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of sixty (60) days
after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least twenty-five percent (25%) in aggregate principal amount of
the Debentures then Outstanding, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(4) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition
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of or in respect of the Company under the Federal Bankruptcy Act or any
other applicable Federal or State law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official)
of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of ninety
(90) consecutive days; or
(5) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Federal Bankruptcy Act or any other similar
applicable Federal or State law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of
any such action.
SECTION 6.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in paragraphs (1), (2), (4) or (5) of
Section 6.1 occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than thirty percent (30%) in aggregate principal amount
of the Debentures then Outstanding may declare the principal of all the
Debentures to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Debentureholders), and upon any such
declaration, such principal shall become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Debentures then Outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay:
(a) all overdue interest on all Debentures;
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(b) the principal of any Debentures which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by
the Debentures; and
(c) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Debentures which have become due solely by such
acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.3. SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Debentureholders by such appropriate judicial proceedings, as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, or any other obligor upon the
Debentures or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Debentures
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Debentures
and to file such other papers or documents as may be necessary or
advisable in order to have the claim of the Trustee (including any
claim for the reasonable compensation,
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expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Debentureholders allowed in
such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Debentureholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Debentureholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Debentureholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Debentureholder in any such proceeding.
SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
DEBENTURES.
All rights of action and claims under this Indenture or the Debentures
may be prosecuted and enforced by the Trustee without the possession of any of
the Debentures or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgment has been recovered.
SECTION 6.6. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and in
case of the distribution of such money on account of principal or interest, upon
presentation of the Debentures and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the Trustee for amounts due under Section 7.7;
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Second: To the Debentureholders for amounts then due and unpaid upon
the Debentures for principal and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Debentures for principal and interest, respectively; and
Third: To the Company.
SECTION 6.7. LIMITATION ON SUITS.
No Holder of any Debenture shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee and the Company of a continuing Event of Default;
(2) the Holders of not less than 30% in aggregate principal
amount of the Outstanding Debentures shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceedings; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such sixty (60) day period by the
Holders of a majority in principal amount of the Outstanding
Debentures;
it being understood and intended that no one or more Holders of Debentures shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders of
Debentures.
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SECTION 6.8. UNCONDITIONAL RIGHT OF DEBENTUREHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Debenture shall have the right which is absolute and unconditional to
receive payment of the principal of and interest on such Debenture on the Stated
Maturity expressed in such Debenture, and to institute suit for the enforcement
of any such payment, and such right shall not be impaired without the consent of
such Holder.
SECTION 6.9. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Debentureholder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Debentureholder, then and in every such case the Company,
the Trustee and the Debentureholders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Debentureholders shall continue as though no such proceeding had been
instituted.
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debentures in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Debentureholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. DELAY OR OMISSION NOT A WAIVER.
No delay or omission of the Trustee or of any Holder of any Debenture
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Debentureholders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the
Debentureholders, as the case may be.
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SECTION 6.12. CONTROL BY DEBENTUREHOLDERS.
The Holders of a majority in principal amount of the Outstanding
Debentures shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that:
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.13. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Debentures may, on behalf of the Holders of all the Debentures, waive any past
default hereunder and its consequences, except a default:
(1) in the payment of the principal of or interest on
any Debenture, or
(2) in respect of a covenant or provision hereof which under
Article Eight cannot be modified or amended without the consent of the
Holders of each Outstanding Debenture affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 6.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debenture
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Debentureholder, or group of
Debentureholders, holding in the aggregate more than 10% in principal amount of
the
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Outstanding Debentures, or to any suit instituted by any Debentureholder for the
enforcement of the payment of the principal of, or interest on, any Debenture on
or after the Stated Maturity expressed in such Debenture.
SECTION 6.15. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VII
The Trustee
SECTION 7.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee, and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal
amount of the Outstanding Debentures relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.2. NOTICE OF DEFAULTS.
Within ninety (90) days after the occurrence of any default hereunder,
the Trustee shall transmit by mail to all Debentureholders, as their names and
addresses appear in the Debenture Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of any default of the character
specified in Section 6.1(1) or (2), the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the Debentureholders; and provided, further, that in the case of
any default of the character specified in Section 6.1(3), no such
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notice to Debentureholders shall be given until at least sixty (60) days after
the occurrence thereof. For the purpose of this Section, "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default.
SECTION 7.3. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 7.1:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Debentureholders pursuant to this Indenture,
unless such Debentureholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or
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investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) except with respect to Section 4.1 herein, the Trustee
shall have no duty to inquire as to the performance of the Company's
covenants in Article Four hereof. In addition, the Trustee shall not be
deemed to have knowledge of any Event of Default except (i) any Event
of Default occurring pursuant to Sections 6.1(1) and 6.1(2) or (ii) any
Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
SECTION 7.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
DEBENTURES.
The recitals contained herein and in the Debentures, except the
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Debentures. The Trustee shall not be accountable for the use or
application by the Company of Debentures or the proceeds thereof.
SECTION 7.5. MAY HOLD DEBENTURES.
The Trustee, any Paying Agent, Debenture Registrar or any other agent
of the Company, in its individual or any other capacity, may become the owner or
pledgee of Debentures and, subject to Sections 7.8 and 7.12, if operative, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Debenture Registrar or such other agent.
SECTION 7.6. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder shall be held in a
separate interest-bearing account and such funds shall at all times be
segregated from all other funds and assets owned or held by the Trustee. Any
interest on any money received by the Trustee hereunder shall be for the benefit
of the Company and shall be paid to the Company upon Company Request.
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SECTION 7.7. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
SECTION 7.8. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any State or Territory or of the District of Columbia or a
corporation or other person permitted to act as Trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $25,000,000, and subject to supervision or
examination by Federal or State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any of its Affiliates shall serve as Trustee hereunder.
The Trustee shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act. This Indenture shall always have a Trustee who satisfies the
requirements of Section 310(a)(1) of the Trust Indenture Act.
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If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 7.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within thirty (30) days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Debentures, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request
therefor by the Company or by any Debentureholder who has been a bona
fide Holder of a Debenture or Debentures for at least six (6) months;
or
(2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any such Debentureholder;
or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee and appoint a successor trustee, or (ii) subject to the provisions of
Section 6.14, any Debentureholder who has been a bona fide Holder of a Debenture
for at least six (6) months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one (1) year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Debentures
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Debentureholders and accepted appointment in the manner hereinafter provided,
any Debentureholder who has been a bona fide Holder of a Debenture for at least
six (6) months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Debentures as their names and addresses appear in the Debenture Register. Each
notice shall indicate the name of the successor Trustee and the address of its
Principal Corporate Trust Office.
SECTION 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the registration or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its lien, if any,
provided for in Section 7.7. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all of such rights, power
and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 7.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Debentures shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debentures so authenticated with the same
effect as if the successor Trustee had itself authenticated such Debentures.
SECTION 7.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
ARTICLE VIII
Supplemental Indentures
SECTION 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
DEBENTUREHOLDERS.
Without the consent of the Holders of any Debentures, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to
the Company, and the assumption by any such successor of the
covenants of the Company herein and in the Debentures
contained; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of the Debentures, or to surrender any
right or power herein conferred upon the Company; or
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(3) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action shall not
adversely affect the interests of the Holders of the Debentures; or
(4) to convey, transfer, assign, mortgage or pledge to or with
the Trustee any property or assets which the Company may desire to
convey, transfer, assign, mortgage or pledge; or
(5) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Debentures in bearer form, registrable or not
registrable as to principal, and with or without interest coupons.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to, but may in its discretion, enter into
any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
8.1 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Debentures at the time Outstanding, notwithstanding any of
the provisions of Section 8.2.
SECTION 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
DEBENTUREHOLDERS.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Debentures, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may amend this Indenture or the Debentures and enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of the
Debentures under this Indenture; provided, however, that no such amendment or
supplemental indenture shall, without the consent of the Holders of each
Outstanding Debenture affected thereby:
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(1) change the Stated Maturity of the principal of, or
interest on, any Debenture, or reduce the principal amount thereof, the
rate of interest or premium, if any, thereon or change any Place of
Payment where, or the coin or currency in which, any Debentures or the
interest or premium, if any, thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof; or
(2) except as otherwise permitted or contemplated in
Article Thirteen hereof, increase the Conversion Price of any
Debenture; or
(3) make any change in Section 6.8; or
(4) reduce the percentage in principal amount of the
Outstanding Debentures, the consent of whose Holders is required for
any such supplemental indenture or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(5) modify any of the provisions of this Section or Section
6.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Debenture affected thereby.
It shall not be necessary for any Act of Debentureholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 8.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 8.4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Holders of Debentures shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and such supplemental indenture
shall form a part of this Indenture for any and all purposes; and every Holder
of Debentures theretofore or thereafter authenticated and delivered thereunder
shall be bound thereby.
SECTION 8.5. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the TIA as then in effect.
SECTION 8.6. REFERENCE IN DEBENTURES TO SUPPLEMENTAL INDENTURES.
Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Debentures so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture, may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debentures.
SECTION 8.7. SUBORDINATION UNIMPAIRED.
No supplemental indenture executed pursuant to this Article shall
affect the superior position of the holders of Senior Indebtedness with respect
to such Debentures.
ARTICLE IX
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 9.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its property and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
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conveyance or transfer the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America or any State or
the District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and interest on all the Debentures and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 9.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger of the Company into another entity, or
any conveyance or transfer of the properties and assets of the Company
substantially as an entirety in accordance with Section 9.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
SECTION 9.3. LIMITATION ON LEASE OF PROPERTIES AS ENTIRETY.
The Company shall not lease its properties and assets substantially as
an entirety to any Person.
ARTICLE X
Satisfaction, Discharge and Defeasance
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange or conversion of
Debentures herein expressly provided for), and the
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Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either:
(a) all Debentures theretofore authenticated and
delivered (other than (i) Debentures which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.6
and (ii) Debentures for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 4.3) have been delivered to the Trustee canceled or
for cancellation at any time after the Distribution Date; or
(b) all such Debentures not theretofore delivered
to the Trustee canceled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one (1) year,
and the Company, in the case of (i) or (ii) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for
the purpose, an amount in money or noncallable U.S. Government
Obligations sufficient to pay and discharge the entire indebtedness on
such Debentures not theretofore delivered to the Trustee canceled or
for cancellation, for principal and interest to the date of such
deposit (in the case of Debentures which have become due and payable)
or to the date of redemption or the Stated Maturity;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
However, the obligations in Article Thirteen shall survive until the Debentures
are no longer outstanding. Thereafter, notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company to the Trustee under
Section 7.7 shall survive.
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SECTION 10.2. APPLICATION OF TRUST MONEY.
All money deposited with the Trustee pursuant to Section 10.1 shall be
held in trust and applied by it, in accordance with the provisions of the
Debentures and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent), as the
Trustee may determine, to the Persons entitled thereto, of the principal and
interest for whose payment such money has been deposited with the Trustee. Money
held by the Trustee in trust hereunder shall be held in a separate interest
bearing account and such funds shall at all times be segregated from all other
funds and assets owned or held by the Trustee. Any interest on any money
received by the Trustee hereunder shall be for the benefit of the Company and
shall be paid to the Company on Company Request.
Any money deposited with the Trustee in trust for the payment of the
principal of and interest on any Debenture pursuant to Section 10.1 and
remaining unclaimed for two (2) years after such principal or interest has
become due and payable, shall be paid to the Company on Company Request; and the
Holder of such Debenture shall thereafter, as an unsecured general creditor,
look to the Company for payment thereof, and all liability of the Trustee with
respect to such trust money shall thereupon cease; provided, however, that the
Trustee, before being required to make any such repayment, may at the expense of
the Company cause to be published once, in an Authorized Newspaper in the Place
of Payment, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty (30) days from the date
of such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
The Trustee shall promptly pay to the Company upon Company
Request any excess money or securities held by it at any time.
SECTION 10.3. SATISFACTION, DISCHARGE AND DEFEASANCE OF
DEBENTURES.
(a) The Company will be deemed to have been Discharged
(as defined below) from its obligations with respect to the
Debentures; or
(b) The Company will cease to be under any obligation to
comply with any term, provision or condition set forth in (i) Article Nine or
(ii) the terms, provisions or conditions of the Debentures (PROVIDED, HOWEVER,
that the Company may not cease to comply with any obligations as to which it may
not be Discharged pursuant to the definition of "Discharged"), if, in the case
of (a) and (b), with respect to the Debentures on the 91st day after the
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applicable conditions set forth below in (x) and (y) have been
satisfied:
(x)(1) the Company has paid or caused
to be paid all other sums payable with respect to the
Outstanding Debentures (in addition to any required under
(y)); and
(2) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of the entire indebtedness on all
Outstanding Debentures have been complied with;
(y)(1) the Company shall have deposited
or caused to be deposited irrevocably with the Trustee as a trust fund
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Debentures (i) an amount in the coin or
currency of the United States of America as at the time of such deposit
is legal tender for the payment of public and private debts or (ii)
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide, not later than the due date of any payment of principal and
interest under the Debentures, money in an amount or (iii) a
combination of (i) and (ii) sufficient (in the opinion with respect to
(ii) and (iii) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee) to pay and discharge each installment of principal of, and
interest on, the outstanding Debentures on the dates such installments
of interest or principal are due;
(2)(i) no Event of Default or event
(including such deposit) which with notice or lapse of time or both
would become an Event of Default shall have occurred and be continuing
on the date of such deposit, (ii) no Event of Default as defined in
clause (4) or (5) of Section 6.1, or event which with notice or lapse
of time or both would become an Event of Default under either such
clause, shall have occurred within 90 days after the date of such
deposit and (iii) such deposit and the related intended consequence
under (a) or (b) will not result in any default or event of default
under any material indenture, agreement or other instrument binding
upon the Company or any Subsidiary or any of their properties; and
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(3) the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that Holders of the
Debentures will not recognize income, gain or loss for Federal income
tax purposes as a result of the Company's exercise of its option under
this Section 10.3 and will be subject to Federal income tax in the same
amount, in the same manner and at the same times as would have been the
case if such option had not been exercised.
Any deposits with the Trustee referred to in clause (y)(1)
above will be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee.
"Discharged" means that the Company will be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Debentures and to have satisfied all the obligations under this
Indenture relating to the Debentures (and the Trustee, at the expense of the
Company, will execute proper instruments acknowledging the same), except (A) the
rights of Holders thereof to receive, from the trust fund described in clause
(y)(1) above, payments of the principal of and the interest on the Debentures
when such payments are due, (B) the Company's obligations with respect to the
Debentures under Sections 3.5, 3.6., 10.2, 4.2, 4.3 (penultimate paragraph only)
and Article Thirteen and the Company's obligations to the Trustee under Sections
7.7 and 7.9 and (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, will survive such discharge. The Company will reimburse the
trust fund for any loss suffered by it as a result of any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
any principal, premium or interest paid on such U.S. Government Obligations,
and, subject to the provisions of Section 7.7, will indemnify the Trustee
against any claims made against the Trustee in connection with any such loss.
ARTICLE XI
Subordination of Debentures
SECTION 11.1. SUBORDINATION.
The Company covenants and agrees, and each Holder of Debentures, by his
acceptance thereof, likewise covenants and agrees, that the indebtedness
represented by the Debentures and the payment of the principal of, interest and
premium, if any, on each and all of the Debentures is expressly subordinated, to
the extent and in the manner hereinafter set forth, in right of payment to the
prior payment in full of all Senior Indebtedness, and that the
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subordination is for the benefit of the holder of Senior
Indebtedness.
SECTION 11.2. DISTRIBUTION OF ASSETS, ETC.
No payment on account of principal of or interest on the Debentures
shall be made, and no Debentures shall be purchased or otherwise acquired, and
no funds shall be set aside for the purchase of any Debentures, either directly
or indirectly, by the Company, if a default in the payment of the principal of
or premium, if any, or interest on any Senior Indebtedness shall have occurred
and continued beyond any applicable period of grace so as to entitle the holder
of such Senior Indebtedness to accelerate its maturity, unless and until such
default shall have been cured or waived or shall have ceased to exist or moneys
for the payment thereof shall have been duly set aside.
In the event of any distribution of assets of the Company upon any
dissolution, winding up, total or partial liquidation, or reorganization of the
Company, whether in bankruptcy, insolvency or receivership proceedings, or upon
any assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company, or otherwise,
(1) all of the principal of and premium, if any, and interest
on all Senior Indebtedness shall first be paid in full or moneys for
the full payment thereof shall have been duly set aside before any
payment is made upon the principal of or interest on any Debenture, and
(2) any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or
securities (other than securities of the Company as reorganized or
readjusted, or securities of the Company or of any other corporation
provided for by a plan of reorganization or readjustment, the payment
of which is subordinated to the payment of all principal of and
premium, if any, and interest on such Senior Indebtedness as may at the
time be outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment, provided that
the obligations represented by all notes or other evidences of Senior
Indebtedness are assumed by the new corporation, if any, resulting from
any such reorganization or readjustment and provided further that the
rights of the holders of Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or
readjustment), to which the Debentureholders would be entitled except
for the provisions of this Article, shall be paid by the liquidating
trustee or agent or other Person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or
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liquidating trustee or otherwise, to the holders of Senior Indebtedness
(pro rata to each such holder on the basis of the respective amounts of
Senior Indebtedness held by such holder) or their representatives, to
the extent necessary to pay the principal of and premium, if any, and
interest on all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to the holders of Senior
Indebtedness, before any payment or distribution is made to the
Debentureholders or to the Trustee.
If the payment of principal of and any interest on the Debentures is
accelerated because of an Event of Default, no payment on account of principal
of or interest on the Debentures shall be made until all of the principal of and
premium, if any, and interest on all Senior Indebtedness has been paid in full
or due provision has been made for such payment.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property (other than securities of the Company as reorganized or
readjusted, or securities of the Company or of any other corporation provided
for by a plan of reorganization or readjustment, the payment of which is
subordinated to the payment of all principal of and premium, if any, and
interest on such Senior Indebtedness as may at the time be outstanding and to
any securities issued in respect thereof under any such plan of reorganization
or readjustment provided that the obligations represented by all notes or other
evidences of Senior Indebtedness are assumed by the new corporation, if any,
resulting from any such reorganization or readjustment and provided further that
the rights of the holders of Senior Indebtedness are not, without the consent of
such holders, altered by such reorganization or readjustment), shall be received
by the Trustee or any Holder in contravention of any of the terms hereof, such
payment or distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness at the time outstanding in accordance with priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustees or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
SECTION 11.3. SUBROGATION.
Subject to the payment in full of all Senior Indebtedness, the
Debentureholders shall be subrogated (equally and ratably with the holders of
the Company's currently outstanding 9% Subordinated
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Debentures due 2005, the Company's currently outstanding 6 3/4% Convertible
Subordinated Debentures due 2006 and all other indebtedness of the Company
which, by its express terms, ranks on a parity with the Debentures and is
entitled to like rights of subrogation) to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until all
amounts owing on the Debentures shall be paid in full, and, as between the
Company, its creditors other than holders of Senior Indebtedness, and the
Debentureholders, no such payment or distribution made to the holders of Senior
Indebtedness by virtue of this Article which otherwise would have been made to
the Debentureholders, shall be deemed to be a payment by the Company on account
of the Senior Indebtedness, it being understood that the provisions of this
Article are and are intended solely for the purpose of defining the relative
rights of the Debentureholders, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 11.4. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this Indenture or in
the Debentures is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the
Debentureholders, the obligation of the Company, which is absolute and
unconditional, to pay to the Debentureholders the principal of and interest on
the Debentures as and when the same shall become due and payable in accordance
with their terms, or affect the relative rights of the Debentureholders and
creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Debentureholder from
exercising all remedies otherwise permitted by applicable law upon an Event of
Default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Debentureholders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending and the Trustee, subject to the
provisions of Section 7.1, and the Debentureholders shall be entitled to rely
upon a certificate of the liquidating trustee or agent or other person making
any payment or distribution to the Trustee or to the Debentureholders for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other
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indebtedness of the Company, the amount thereof or payable thereon, the amount
paid or distributed thereon, and all other facts pertinent thereto or to this
Article.
SECTION 11.5. PAYMENTS ON DEBENTURES PERMITTED.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Debentures shall affect the obligation of the Company to make, or
prevent the Company from making, payment of the principal of or interest on the
Debentures in accordance with the provisions hereof, except as otherwise
provided in this Article.
SECTION 11.6. EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each Holder of Debentures, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action at the request of the
Company as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any
and all such purposes.
SECTION 11.7. KNOWLEDGE OF TRUSTEE.
Notwithstanding the provisions of this Article or any other provisions
of this Indenture, but subject to the provisions of Section 7.1, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee, or the taking
of any other action by the Trustee under this Article Eleven, unless and until
the Trustee shall have received written notice thereof, in the manner required
by Section 1.5, from the Company, any Debentureholder, any Paying Agent, any
Debenture Registrar, or the holder or representative of any class of Senior
Indebtedness.
SECTION 11.8. TRUSTEE MAY HOLD SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
7.12 or elsewhere in this Indenture shall deprive the Trustee of any of its
rights as such holder.
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SECTION 11.9. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT
IMPAIRED.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holders may have or be
otherwise charged with.
SECTION 11.10. ALTERATION OF SENIOR INDEBTEDNESS.
The Holders of any Senior Indebtedness may extend, renew, modify or
amend the terms of such Senior Indebtedness or any security therefor and may
release, sell or exchange such security and otherwise deal freely with the
Company, all without notice to or consent of the Debentureholders and without
affecting the liabilities and obligations of the Company, the Trustee or the
Debentureholders under this Indenture or the Debentures.
SECTION 11.11. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee, provided, however,
that Sections 11.7, 11.8, and 11.10 shall not apply to the Company if it acts as
Paying Agent.
SECTION 11.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Debentures or to the Company or to any other person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article Eleven or otherwise.
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ARTICLE XII
Redemption
SECTION 12.1. MANDATORY REDEMPTION.
The Company shall have no mandatory redemption or sinking fund
obligations with respect to the Debentures.
SECTION 12.2. OPTIONAL REDEMPTION.
The Company may redeem all or any portion of the Debentures at any time
and from time to time after ___________ 1, 2000, upon the terms and at the
redemption prices set forth in the form of Debenture included in Section 2.1
hereof.
Any redemption pursuant to this Section 12.2 shall be made pursuant to
the provisions of Section 12.3 through 12.8 hereof.
SECTION 12.3. NOTICES TO TRUSTEE.
If the Company elects to redeem Debentures pursuant to the optional
redemption provisions of Section 12.2 hereof, it shall furnish to the Trustee,
at least thirty (30) days but not more than sixty (60) days before a redemption
date, an Officers' Certificate setting forth the redemption date, the principal
amount of Debentures to be redeemed and the redemption price.
SECTION 12.4. SELECTION OF DEBENTURES TO BE REDEEMED.
If less than all of the Debentures are to be redeemed, the Trustee
shall select the Debentures to be redeemed among the Holders of the Debentures
pro rata or in accordance with a method the Trustee considers fair and
appropriate (and in such manner as complies with applicable legal and stock
exchange requirements, if any). In the event of partial redemption by lot, the
particular Debentures to be redeemed shall be selected, unless otherwise
provided herein, not less than thirty (30) nor more than sixty (60) days prior
to the redemption date by the Trustee from the outstanding Debentures not
previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for redemption and, in the case of any Debenture selected
for partial redemption, the principal amount thereof to be redeemed. Debentures
and portions of them selected shall be in amounts of $1,000 or whole multiples
of $1,000; except that if all of the Debentures of a Holder are to be redeemed,
the entire outstanding amount of Debentures held by such Holder shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Debentures called for
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redemption also apply to portions of Debentures called for
redemption.
The provisions of the two preceding paragraphs of this Section 12.4
shall not apply with respect to any redemption affecting only a Global
Debenture, whether such Global Debenture is to be redeemed in whole or in part.
In case of any such redemption in part, the unredeemed portion of the principal
amount of the Global Debenture shall be in an authorized denomination.
SECTION 12.5. NOTICE OF REDEMPTION.
At least thirty (30) days but not more than sixty (60) days before a
redemption date, the Company shall mail a notice of redemption to each Holder
whose Debentures are to be redeemed.
The notice shall identify the Debentures to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) if any Debenture is being redeemed in part, the portion of
the principal amount of such Debenture to be redeemed and that, after the
redemption date, upon surrender of such Debenture, a new Debenture or Debentures
in principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Debentures called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
and
(6) that interest on Debentures called for redemption
ceases to accrue on and after the redemption date.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall deliver to the Trustee, at least thirty-five (35) days prior to
the redemption date, an Officers' Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.
If any of the Debentures to be redeemed is in the form of a Global
Debenture, then such notice shall be modified in form but not substance to the
extent appropriate to accord with the procedures of the Depositary applicable to
redemptions.
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SECTION 12.6. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Debentures called for redemption
and not converted into Class A Common Stock pursuant to Article Thirteen hereof
become due and payable on the redemption date at the redemption price.
SECTION 12.7. DEPOSIT OF REDEMPTION PRICE.
One Business Date prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Debentures to be redeemed on
that date. The Trustee or the Paying Agent shall return to the Company any money
not required for that purpose.
If the Company complies with the preceding paragraph, interest on the
Debentures to be redeemed will cease to accrue on the applicable redemption
date, whether or not such Debentures are presented for payment. If any Debenture
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
will be paid on the unpaid principal, from the redemption date until such
principal is paid, and on any interest not paid on such unpaid principal, in
each case at the rate provided in the Debentures and in Section 4.1 hereof.
SECTION 12.8. DEBENTURES REDEEMED IN PART.
Upon surrender of a Debenture that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Debenture equal in principal amount to the unredeemed portion
of the Debenture surrendered.
SECTION 12.9. REPURCHASING OF DEBENTURES.
Nothing herein shall prohibit the Company from repurchasing from time
to time all or any portion of the Debentures in the open market or in privately
negotiated transactions.
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ARTICLE XIII
Conversion of Debentures
SECTION 13.1. CONVERSION PRIVILEGE.
Subject to and upon compliance with the provisions of this Article
Thirteen and the terms of the form of Debenture set forth in Section 2.3 hereof,
at the option of the Holder, any Debenture or any portion of the principal
amount thereof which is $1,000 or a whole multiple thereof, may, at any time on
or before ___________ 1, 2007, or in case such Debenture or some portion thereof
shall be called for redemption prior to such date, then, with respect to such
Debenture or portion thereof, until and including, but not after, the close of
business on the third (3rd) business day next preceding the date fixed for such
redemption, be converted at the principal amount thereof into Class A Common
Stock at the Conversion Price in effect at the date of conversion.
SECTION 13.2. MANNER OF EXERCISE OF CONVERSION PRIVILEGE.
To exercise the conversion privilege, the Holder shall surrender such
Debenture to the Registrar, together with a duly executed conversion notice in
the form provided on the Debenture, and, if so required by the Registrar, the
Debenture shall also be accompanied by proper assignments thereof to the Company
or in blank for transfer and any requisite Federal and state transfer tax
stamps. Debentures surrendered for conversion during the period from the close
of business on the record date preceding an interest payment date to the opening
of business on such interest payment date shall (unless any such Debenture or
the portion thereof being converted shall have been called for redemption) also
be accompanied by payment in funds in cash or by certified bank cashier's check
of an amount equal to the interest payable on such interest payment date on the
principal amount of such Debenture then being converted. As promptly as
practicable after the surrender of any Debenture for conversion, the Company
shall issue and shall deliver to the Registrar for delivery to such Holder, or
his designee, a certificate or certificates for the number of full shares of
Class A Common Stock issuable upon the conversion of such Debenture or portion
thereof and a check or cash in respect of any fraction of a share of Class A
Common Stock issuable upon such conversion, all as provided in this Section
13.2, together with a Debenture or Debentures in principal amount equal to the
unconverted and unredeemed portion, if any, of the Debenture so converted.
Conversion shall be deemed to have been effected on the date on which notice
(and payment, if required) shall have been received at the Registrar's office
and such Debenture shall have been surrendered to the Registrar, and at that
time the rights of the holder as a Holder shall cease as to that portion of the
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Debenture converted, and the person or persons in whose name or names any
certificate or certificates for shares of Class A Common Stock shall be issuable
upon such conversion shall be deemed to have become on said date the holder or
holders of record of the shares represented thereby; provided, however, that in
the event any such conversion occurs on any date when the stock transfer books
of the Company are closed, the person or persons in whose name or names the
certificates for shares of Class A Common Stock are to be issued will be deemed
the record holder or holders thereof for all purposes on the next succeeding day
on which such stock transfer books are open, and the conversion shall be at the
Conversion Price in effect on such next succeeding day on which such transfer
books are open. Subject to the foregoing, no adjustment shall be made for
interest accrued on any Debenture that shall be converted (unless any such
Debenture or the portion thereof being converted shall have been called for
redemption) or for dividends on any Class A Common Stock that shall be issued
upon the conversion of such Debenture.
SECTION 13.3. CASH ADJUSTMENT UPON CONVERSION.
The Company shall not be required to issue fractions of shares of Class
A Common Stock upon conversion of Debentures. If more than one Debenture shall
be surrendered for conversion at any time by the same holder, the number of full
shares of Class A Common Stock which shall be issuable upon conversion thereof
shall be computed on the basis of the aggregate principal amount of the
Debentures so surrendered. If any fractional interest in a share of Class A
Common Stock would be deliverable upon the conversion of any Debenture or
Debentures, the Company shall make an adjustment therefor in cash equal to the
current market value of such fractional interest computed to the nearest
thousandth of a share at the closing price on the New York Stock Exchange or, if
then traded on any other national securities exchange, the closing price on such
exchange or, if the Class A Common Stock shall not then be traded on a national
securities exchange, the closing price on the Nasdaq National Market System or,
if the Class A Common Stock is not then quoted on the Nasdaq National Market
System, the highest bid quotation on an automated quotation system on the last
business day prior to the date of conversion, or if the Class A Common Stock
shall not then be listed on an exchange, quoted on the Nasdaq National Market
System or included on an automated quotation system, as reported by the National
Quotation Bureau, Inc. or similar reporting service.
SECTION 13.4. CONVERSION PRICE.
The Conversion Price shall be as specified in the form of Debenture set
forth in Section 2.3 hereof or, after adjustment as provided in this Section 13,
the Conversion Price as so adjusted.
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SECTION 13.5. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the Company shall, at any time or from time to
time while any of the Debentures are outstanding, (i) issue any shares
of its capital stock as a dividend (or other distribution) on its Class
A Common Stock; (ii) subdivide its outstanding shares of Class A Common
Stock into a greater number of shares; (iii) combine its outstanding
shares of Class A Common Stock into a smaller number of shares, or (iv)
issue by reclassification of its Class A Common Stock any shares of
stock of the Company, the Conversion Price in effect immediately prior
thereto shall be adjusted so that any Debentureholder who thereafter
converts his Debenture shall be entitled to receive the number of
shares of capital stock of the Company which he would have owned or
have been entitled to receive after the happening of any of the events
described above, had such Debenture been converted immediately prior to
the happening of such event. Any adjustment made pursuant to this
subdivision (a) shall become effective, in the case of a dividend, on
the payment date retroactively to immediately after the opening of
business on the day following the record date for the determination of
shareholders entitled to receive such dividend, subject to the
provisions of subdivision (f) of this Section 13.5, and shall become
effective in the case of a subdivision, combination or reclassification
immediately after the opening of business on the day following the day
when such subdivision, combination or reclassification, as the case may
be, becomes effective.
(b) In case the Company shall, at any time or from time to
time while any of the Debentures are outstanding, issue rights or
warrants entitling anyone to subscribe for or purchase shares of Class
A Common Stock at a price per share less than the then current market
price per share of Class A Common Stock (as defined in subdivision (d)
below) at the Measurement Date (as defined below), the Conversion Price
in effect immediately prior to the issuance of such rights or warrants
shall be adjusted as follows: the number of shares of Class A Common
Stock into which $1,000 principal amount of Debentures was theretofore
convertible shall be multiplied by a fraction, the numerator of which
shall be the number of shares of Class A Common Stock outstanding
immediately prior to such issuance plus the number of additional shares
of Class A Common Stock offered for subscription or purchase, and the
denominator of which shall be the number of shares of Class A Common
Stock outstanding immediately prior to such issuance plus the number of
shares which the aggregate offering price
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of the total number of shares so offered would purchase at such current
market price; and the Conversion Price shall be adjusted by dividing
$1,000 by the new number of shares into which $1,000 principal amount
of Debentures shall be convertible as aforesaid. The term "Measurement
Date" shall mean, with respect to determining current market price in
connection with the issuance of rights or warrants to purchase Class A
Common Stock, the earlier of (i) the date upon which the Company enters
into a bona fide and binding agreement for the issuance of such rights
or warrants and (ii) the issuance or grant thereof. Such adjustment
shall become effective on the date of such issuance, all as determined
by the independent certified public accountants then regularly auditing
the accounts of the Company, whose determination shall be conclusive,
subject to the provisions of subdivision (f) of this Section 13.5.
(c) In case the Company shall, at any time or from time to
time while any of the Debentures are outstanding, distribute to all
holders of shares of Class A Common Stock evidences of its indebtedness
or securities or assets (excluding cash dividends or cash distributions
payable out of retained earnings, or distributions payable in shares of
Class A Common Stock) or rights to subscribe for same (excluding those
referred to in subdivision (b) above), the Conversion Price in effect
immediately prior to such distribution shall be adjusted as follows:
the number of shares of Class A Common Stock into which $1,000
principal amount of Debentures was theretofore convertible shall be
multiplied by a fraction, the numerator of which shall be the current
market price per share of Class A Common Stock (as defined in
subdivision (d) below) on the record date for such distribution, and
the denominator of which shall be such current market price per share
of the Class A Common Stock, less the then fair market value (as
determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the assets or
securities or evidences of indebtedness so distributed or of such
subscription rights applicable to one share of Class A Common Stock;
and the Conversion Price shall be adjusted by dividing $1,000 by the
new number of shares into which $1,000 principal amount of Debentures
shall be convertible as aforesaid. Such adjustment shall become
effective on the date of such distribution retroactively to immediately
after the opening of business on the day following the record date for
the determination of shareholders entitled to receive such
distribution, subject to the provisions of subdivision (f) of this
Section 13.5. For the purposes of this subdivision (c), retained
earnings shall be computed by adding thereto all charges against
retained earnings on account of dividends paid in shares of Class A
Common Stock in
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respect of which the Conversion Price has been adjusted, all as
determined by the independent certified public accountants then
regularly auditing the accounts of the Company, whose determination
shall be conclusive.
(d) For the purpose of any computation under subdivision (b)
and (c) above, the current market price per share of Class A Common
Stock at any date shall be deemed to be the average of the market
values of the Class A Common Stock for the ten (10) consecutive
business days immediately preceding the day in question. The market
value of the Class A Common Stock for each day shall be determined as
provided in Section 13.3 hereof.
(e) Except as herein otherwise provided, no adjustment in the
Conversion Price shall be made by reason of the issuance in exchange
for cash, property or services, of shares of Class A Common Stock, or
any securities convertible into or exchangeable for shares of Class A
Common Stock, or carrying the right to purchase any of the foregoing.
(f) If the Company shall take a record of the holders of Class
A Common Stock for the purpose of entitling them to receive any
dividend, for any subscription or purchase rights or any distribution
and shall, thereafter and before the distribution to stockholders of
any such dividend, subscription or purchase rights or distribution,
abandons its plan to pay or deliver such dividend, subscription or
purchase rights or distribution, then no adjustment of the Conversion
Price shall be required by reason of the taking of such record.
(g) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which
by reason of this subdivision (g) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Section 13.5 shall be made to the nearest
cent or to the nearest one-thousandth of a share, as the case may be.
(h) Whenever the Conversion Price is adjusted as herein
provided, the Company shall (i) forthwith place on file at the
corporate trust office of the Trustee and the Registrar a statement
signed by the Chairman of the Board, the President, or an Executive
Vice President of the Company and by its Treasurer or an Assistant
Treasurer showing in detail the facts requiring such adjustment and the
Conversion Price after such adjustment and the statement of the
Company's independent certified public accounts confirming the
Conversion Price
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after such adjustment, and the Trustee and Registrar shall exhibit the
same from time to time to any Holder desiring to inspect such
certificate during normal business hours, and (ii) cause a notice
stating that such adjustment has been effective and the adjusted
Conversion Price to be mailed to the Holders of Debentures at their
last addresses as they shall appear on the books of the Registrar.
SECTION 13.6. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS,
MERGERS OR SALES ON CONVERSION PRIVILEGES.
In case of any reclassification or change of outstanding shares of
Class A Common Stock issuable upon conversion of the Debentures (other than a
change in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), or in case of any
consolidation of the Company with one or more other corporations (other than a
consolidation in which the Company is the continuing corporation and which does
not result in any reclassification or change of outstanding shares of Class A
Common Stock issuable upon conversion of the Debentures), or in case of the
merger of the Company into another corporation, or in case of any sale or
conveyance to another corporation of the property of the Company as an entirety
or substantially as an entirety, the Company, or such successor or purchasing
corporation, as the case may be, shall execute with the Trustee a supplemental
indenture which shall conform to the TIA, providing that each Holder shall have
the right to convert their outstanding Debenture into the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of shares of Class A Common Stock into which such Debenture might
have been converted immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Thirteen and any
such adjustments which shall be approved by the Board of Directors and set forth
in such supplemental indenture shall be conclusive for all purposes of this
Section 13.6, and the Trustee shall not be under any responsibility to determine
the correctness of any provision contained in such supplemental indenture
relating to either the kind or amount of shares of stock or securities or
property receivable by Debentureholders upon the conversion of their Debentures
after any such reclassification, change, consolidation, merger, sale or
conveyance.
The above provisions of this Section 13.6 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales and
conveyances.
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SECTION 13.7. TAXES ON CONVERSIONS.
The issue of stock certificates on conversion of Debentures shall be
made without charge to the converting Debentureholder for any issue tax in
respect of the issue thereof. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of Class A Common Stock (or other security) in any name
other than that of the Holder of any Debenture converted, and the Company shall
be not required to issue or deliver any such stock certificate unless and until
the person or persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.
SECTION 13.8. COMPANY TO RESERVE STOCK.
The Company shall at all times reserve and keep available out of its
authorized but unissuable shares of Class A Common Stock, for the purpose of
effecting the conversion of the Debentures, such number of its duly authorized
shares of Class A Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding Debentures.
The Company covenants that it will in good faith and as expeditiously
as possible take all reasonable steps necessary to ensure that any shares of
Class A Common Stock reserved or to be reserved for the purpose of conversion of
Debentures hereunder may be issued upon conversion without a legend restricting
transfer.
The Company covenants that all shares of Class A Common Stock which may
be issuable upon conversion of Debentures shall upon issue be fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof.
SECTION 13.9. DISCLAIMER BY TRUSTEE OF RESPONSIBILITY FOR CERTAIN
MATTERS.
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder to determine whether any facts exist
which may require any adjustment of the Conversion Price, or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed, or provided to be employed, herein or in any supplemental indenture in
making such adjustment. Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Class A Common Stock, or of any securities or property, which may at
any time be issued or delivered upon the conversion of any Debenture; and
neither the Trustee nor any conversion agent makes any representation with
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respect thereto. Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to make any cash payment or to issue,
register the transfer of or deliver any shares of Class A Common Stock or stock
certificates or other securities or property upon the surrender of any Debenture
for the purpose of conversion or to comply with any of the covenants of the
Company contained in this Article Thirteen.
SECTION 13.10. COMPANY TO GIVE NOTICE OF CERTAIN EVENTS.
In the event that the Company shall:
(1) pay any dividend or make any distribution to the
holders of Class A Common Stock otherwise than in cash out of
its retained earnings; or
(2) offer for subscription, pro rata, to the holders of
Class A Common Stock any additional shares of stock of any
class or any other right; or
(3) effect any reclassification or change of outstanding
shares of Class A Common Stock issuable upon the conversion of the
Debentures (other than a change in par value, or from par value to no
par value, or from no par value to par value, or as a result of a
subdivision or combination), or any consolidation of the Company with,
or merger of the Company into, another corporation (other than a
consolidation in which the Company is the continuing corporation and
which does not result in any reclassification or change of outstanding
shares of Class A Common Stock issuable upon conversion of the
Debentures), or any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety;
then, and in any one or more of such events, the Company will give a
Responsible Officer of the Trustee and the Registrar written notice
thereof at least two (2) business days prior to (i) the record date
fixed with respect to any of the events specified in (1) and (2) above,
and (ii) the effective date of any of the events specified in (3)
above; and shall mail a copy of such notice to Holders at their last
addresses, as they appear upon the books of the Registrar.
ARTICLE XIV
Immunity of Directors, Officers, Employees and Stockholders
SECTION 14.1. EXEMPTION FROM INDIVIDUAL LIABILITY.
No Affiliate, officer, director, employee or stockholder, as such, of
the Company, or its Subsidiaries, shall have any liability
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for any obligations of the Company under the Debenture or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Debentureholder by accepting a Debenture hereby expressly waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Debentures.
* * * * * * * * *
*
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed and attested, all as of the day and year first above written.
Attest: BANKATLANTIC BANCORP, INC.
By:___________________________ By:______________________________________
Xxxx X. Xxxxx
Chairman
Attest: FIRST TRUST NATIONAL ASSOCIATION
By:____________________________ By:______________________________________
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